Commercial Litigation and Arbitration

RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012):

RICO's "Venue and Process" section, § 1965(a), "does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant is found." PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 71 (2d Cir. 1998). Instead, "§ 1965(a) grants personal jurisdiction over an initial defendant in a civil RICO case to the district court for the district in which that person resides, has an agent, or transacts his or her affairs." Id.

Here, none of the defendants reside or can be found in New York. Thus, any per-sonal jurisdiction based on RICO must be based on the defendants either having an agent or otherwise transacting their affairs in New York. Pincione has not pleaded facts that satisfy either of these tests. Massimiliano Naddeo is the de-fendants' only possible "agent" in New York. The allegations concerning his agency were entirely conclusory and thus inadequate.

Pincione has also failed to make a sufficient showing that any of the defendants "transacts his affairs" in New York. The district court held and Pincione does not dispute on appeal that the "transacts his affairs" lan-guage in § 1965 is "synonymous with the Clayton Act's, 15 U.S.C. § 22, requirement that a party 'transact[] business' in the venue." J.App'x at 273. "Under this definition, the business must be substantial in character, so that there is 'some amount of business continuity and certainly more than a few isolated and peripheral contacts with the particular judicial district.'" Id. (quoting Gates, 2003 WL 21297296, at *4). Pincione emphasizes that the defendants repeatedly contacted him while he was in New York. However, as the district court held, "these contacts do not rise to the level required by RICO. Rather, they were minimal and . . . solely for the purposes of a business deal that took place in Ita-ly." J.App'x 275.

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